Komanicky v Contractor

[*1] Komanicky v Contractor 2015 NY Slip Op 51386(U) Decided on August 10, 2015 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 10, 2015
Supreme Court, Broome County

Pavel Komanicky, Plaintiff,

against

Salim G. Contractor, M.D. CHIEF EXECUTIVE OFFICER NEW YORK ONCOLOGY HEMATOLOGY, P.C. CHIEF EXECUTIVE OFFICER ALBANY MEDICAL COLLEGE FACULTY GROUP PRACTICE SHELLEY MALONE-WALSH CHIEF EXECUTIVE OFFICER AND ALL HEALTHCARE STAFF ALBANY MEDICAL CENTER CHARLES A. ROSANO, R.N. CHIEF EXECUTIVE OFFICER HOSPITAL PHARMACY ALBANY MEDICAL CENTER PURVI PARIKH, M.D. KARINN CHAMBERS, M.D. EDWARD LEE, M.D. KIRAN P. SEKHAR, M.D. JOEL M. BARTFIELD, M.D. VINCENT P. VERDILE, M.D. MEDICAL STUDENT NICOLE c/o VINCENT P. VERDILE, M.D. JAMES J. BARBA GARY SISKIN, M.D., Defendants.



2013-2863



PLAINTIFF:PAVEL KOMANICKY, PRO SE

5 RIVERSIDE DRIVE

BINGHAMTON, NY 13905

DEFENDANTS:

SALIM G. CONTRACTOR, M.D.

CHIEF EXECUTIVE OFFICER NEW YORK

ONCOLOGY HEMATOLOGY, P.C.:LEVENE, GOULDIN & THOMPSON, LLP

BY:MARGARET J. FOWLER, ESQ.,

OF COUNSEL

P.O. BOX F-1706

BINGHAMTON, NY 13902

CHIEF EXECUTIVE OFFICER ALBANY

MEDICAL COLLEGE FACULTY GROUP

PRACTICE, SHELLEY MALONE-WALSH,

CHIEF EXECUTIVE OFFICER AND ALL

HEALTHCARE STAFF ALBANY MEDICAL

CENTER, CHARLES A. ROSANO, R.N.

CHIEF EXECUTIVE OFFICER HOSPITAL

PHARMACY ALBANY MEDICAL CENTER,

PURVI PARIKH, M.D., KARINN CHAMBERS,

M.D., EDWARD LEE, M.D., KIRAN P. SEKHAR, M.D.,

JOEL M. BARTFIELD, M.D., VINCENT P. VERDILE,

M.D., MEDICAL STUDENT NICOLE c/o VINCENT

P. VERDILE, M.D., JAMES J. BARBA:MAYNARD, O'CONNOR, SMITH, &

CATALINOTTO, LLP

BY:THOMAS G. DALEY, ESQ., OF

COUNSEL

6 TOWER PLACE

ALBANY, NY 12203

GARY SISKIN, M.D.:CARTER, CONBOY, CASE, BLACKMORE, MALONEY & LAIRD, P.C.

BY:MACKENZIE C. MONACO, ESQ.,

OF COUNSEL

20 CORPORATE WOODS BOULEVARDALBANY, NY 12211-2362
Ferris D. Lebous, J.

In lieu of answering, defendants all move to dismiss the complaint on the grounds that the court does not have jurisdiction due to improper service (CPLR §§ 308[2]; 312-a; 3211 [a][8]), for failure to timely commence the action (CPLR § 214-a), and/or failure to state a cause of action (CPLR § 3211 [a][7]).

Plaintiff Pavel Komanicky, appearing pro se, opposes the motions in all respects.

BACKGROUND

A.The Parties

Plaintiff Pavel Komanicky has named sixteen defendants in relation to medical treatment he received that will be outlined below. Defendants have responded in three groups, described in general terms by the court for ease of reference as "the Clinic Defendants", "the Hospital Defendants," and finally "Dr. Siskin."

The Clinic Defendants are Salim G. Contractor, M.D. and New York Oncology Hematology, P.C.[FN1]

The Hospital Defendants are various medical staff at Albany Medical Center that actually treated plaintiff, as well as those named only in their administrative capacities. The Hospital Defendants who allegedly treated plaintiff in some medical capacity are named as follows:

Kiran P. Sekhar, M.D.;

Medical Student Nicole c/o Vincent P. Verdile, M.D.;

Charles A. Rosano, R.N.;

Shelley Malone-Walsh;

Purvi Parikh, M.D.; and

Karinn Chambers, M.D.

The Hospital Defendants named solely in their administrative capacities are as follows:

Chief Executive Officer Albany Medical College Faculty Group Practice;

Chief Executive Officer and all Healthcare Staff Albany Medical Center;

Chief Executive Officer Hospital Pharmacy Hospital Albany Medical Center;

Edward Lee, M.D. (Chief, Division of General Surgery);

Joel M. Bartfield, M.D. (Assoc Dean for Graduate Medical Education);

Vincent P. Verdile, M.D. (Dean); and

James J. Barba (President/CEO).

B.The Allegations

The following synopsis of the factual allegations underlying this action are taken from the complaint.

On May 24, 2011, plaintiff entered defendant New York Oncology Hematology, P.C.'s outpatient clinic where he underwent a "bone marrow aspiration and biopsy at site of left posterior crest iliac bone" by Dr. Contractor and a medical student named "Nicole". During the procedure, plaintiff experienced problems with acute bleeding in his abdomen/pelvis and was taken by ambulance to the Albany Medical Center emergency room.

On May 25, 2011, in Albany Medical Center, defendant Dr. Sekhar inserted a pigtail catheter in plaintiff's intra-abdominal pelvic hematoma to drain blood out of the abdomen. The complaint alleges Dr. Sekhar failed to install an extension drainage tube between the catheter and bag; placed a 3-way stopcock in plaintiff's back causing pressure on spine/pain; improper care in flushing/irrigating drain; that attending Dr. Parikh and Dr. Chambers failed to pay attention and failed to document; and that plaintiff acquired a "superbug infection".

On May 28, 2011, plaintiff alleges a nurse, defendant Rosano, started an infusion that caused plaintiff to become ill.

It appears that plaintiff was discharged from Albany Medical Center on either June 5, 2011 or June 6, 2011.

C.The Pleadings

On December 4, 2013, plaintiff filed a summons with notice in the Broome County Clerk's Office. The summons describes the nature of the matter as medical malpractice.

On April 8, 2014, plaintiff filed a complaint in the Broome County Clerk's Office.

On December 30, 2014, plaintiff filed 18 separate affidavits of service in the Broome County Clerk's Office. The details of said affidavits will be discussed as necessary in further detail herein below.

Defendants' motions were all initially returnable on February 6, 2015. The court granted plaintiff's request for a sixty day adjournment and adjourned the motion to April 10, 2015. Plaintiff requested and was granted a second adjournment by the court to July 17, 2015. The court heard oral argument from plaintiff and counsel on July 17, 2015.

DISCUSSION

The grounds for dismissal raised by defendants include lack of personal jurisdiction, statute of limitations, and failure to state a cause of action. For purposes of these motions, the court will assume the action has been timely commenced and will address the issue of personal jurisdiction.

[*2]I.Personal Jurisdiction

Defendants have all moved for dismissal for lack of personal jurisdiction pursuant to CPLR § 3211 (a)(8). According to CPLR § 3211 (a) (8), "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has not jurisdiction of the person of the defendant." Under CPLR § 3211(a)(8), the burden of proving jurisdiction rests upon the party asserting it. Thus, on this motion to dismiss, the plaintiff is obligated to come forth with definite evidentiary facts to support the exercise of jurisdiction over the defendants (Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832 [3d Dept 1988]).

All of plaintiff's service attempts are based on one of two methods, namely either CPLR § 308 (2) or CPLR § 312-a.

CPLR § 308 (2) contains a two-part requirement for effective service with the first being delivery to a person of suitable age and discretion at certain premises and the second component being a mailing either to the last known residence or actual place of business (hence the phrase "deliver and mail"). The additional mailing is also required to be in an envelope bearing the legend of "personal and confidential" and not indicating on the outside that the communication is from an attorney or concerns litigation. Both of the deliver and mail steps must be achieved within 20 days of each other with proof of service filed with the clerk within 20 days thereafter. Failure to perform both steps is a jurisdictional defect. Actual receipt is not dispositive (Ruffin v Lion Corp., 15 NY3d 578, 583 [2010]).

CPLR § 312-a is the other method of service that plaintiff attempted to use which permits the use of service by regular mail, together with a "statement of service by mail and acknowledgment of receipt". However, successful service under this provision requires a defendant's cooperation in completing and returning the signed acknowledgment of receipt form. The defendant is under no obligation to cooperate (Matter of Shenko Elec. v Hartnett, 161 AD2d 1212 [4th Dept 1990]). Stated simply, plaintiff is incorrect in his belief that the law requires a defendant to cooperate. The only remedy for a plaintiff that is faced with the lack of cooperation of a defendant who fails to return the acknowledgment is the potential for recovering the expense for follow-up service on that defendant (CPLR § 312-a [f]). Additionally, the fact that a defendant may have actually received the summons and complaint is of no moment (Clarke v Smith, 98 AD3d 756 [3d Dept 2012]).

Also relevant with respect to the issue of service is CPLR § 306-b which requires that the summons must be served within 120 days of filing of summons with notice. More specifically,

CPLR § 306-b states:

[s]ervice of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the filing of the summons and complaint, [*3]summons with notice, third-party summons and complaint, or petition....

If service is not achieved within that time frame, the court may extend the time to serve upon a showing of good cause or interests of justice. An analysis of this extension provision is discussed herein below (Point III).

A.THE CLINIC DEFENDANTS 1.Dr. Contractor

Plaintiff attempted to serve Dr. Contractor on three separate occasions including April 7, 2014, April 14, 2014 and December 15, 2014. All three service attempts were improper for the reasons stated below. Further, plaintiff had 120 days to serve Dr. Contractor following the date the summons with notice was filed on December 4, 2013 which time period would have expired on April 3, 2014. Thus, all three attempts were beyond the allowable 120 day time period.

On April 7, 2014, plaintiff sent the summons with notice to Dr. Contractor by regular mail, together with a CPLR § 312-a acknowledgment form. On April 14, 2014, plaintiff again sent the summons with notice to Dr. Contractor by regular mail together with a CPLR § 312-a acknowledgment form. Neither of these attempts were successful because Dr. Contractor exercised his right not to voluntarily return the acknowledgment form. Thus, these two attempts were insufficient as a matter of law under CPLR § 312-a.

Then on December 15, 2014, plaintiff arranged for the summons to be delivered to a receptionist at the Hudson, New York location of New York Oncology Hematology, P.C. This service attempt was insufficient as a matter of law because it was not accompanied by the second component of CPLR § 308 (2) which requires an additional mailing within 20 days in an envelope bearing the legend of "personal and confidential" and not indicating on the outside that the communication is from an attorney or concerns litigation. The court finds that plaintiff failed to properly serve on Dr. Contractor under CPLR § 308 (2). Thus, based upon these service attempts the court does not have jurisdiction over Dr. Contractor.

2.Chief Executive Officer New York Oncology Hematology

Plaintiff has named "Chief Executive Officer New York Oncology Hematology, P.C." as a defendant. According to defense counsel, the proper name of the corporation is New York Oncology Hematology, P.C. It is unclear whether or not plaintiff was attempting to actually name the chief executive officer in his/her administrative capacity or was attempting to name the corporation itself. In any event, Dr. Contractor is not the chief executive officer of said corporation. Plaintiff attempted to serve the corporation on December 15, 2014 when the

summons was delivered to a receptionist at the Hudson, New York location of New York Oncology Hematology, P.C. Said service attempt was improper for the reasons previously stated.

In view of the foregoing, defendants Dr. Contractor and New York Oncology Hematology, P.C.'s motion to dismiss the complaint pursuant to CPLR § 3211 (a) (8) (the court [*4]has not jurisdiction of the person of the defendant) due to improper service is granted.

B.THE HOSPITAL DEFENDANTS

The Hospital Defendants also move to dismiss on the grounds that the court does not have jurisdiction over the defendants due to improper service (CPLR § 3211 [a][8]).

Plaintiff also attempted to serve the Hospital Defendants by regular mail, together with a CPLR § 312-a acknowledgment form. As stated above, the law is well settled that a defendant does not have to voluntarily return the acknowledgment form. As such, plaintiff's attempts to serve the Hospital Defendants by CPLR § 312-a fails as a matter of law.

Next, plaintiff attempted to serve the Hospital Defendants by delivering multiple copies of the summons with notice to a receptionist at Albany Medical Center on December 15, 2014. Affidavits of service regarding these service attempts were filed with the Broome County Clerk's Office on December 30, 2014. The court finds that all service attempts against these defendants were ineffective for the same reasons set forth hereinabove under Dr. Contractor, namely a failure to comply with the mailing component of CPLR § 308 (2) which requires an additional mailing within 20 days in an envelope bearing the legend of "personal and confidential" and not indicating on the outside that the communication is from an attorney or concerns litigation.

Accordingly, the court grants the motion to dismiss by the Hospital Defendants pursuant to CPLR § 3211 (a) (8) (the court has not jurisdiction of the person of the defendant) due to improper service.

C.DR. SISKEN

Plaintiff attempted to serve Dr. Siskin on three separate occasions, namely April 2, 2014, December 15, 2014, and December 16, 2014.

On April 2, 2014, plaintiff sent the summons with notice to Dr. Siskin by regular mail, together with an acknowledgment form under CPLR § 312-a. Dr. Siskin did not return the acknowledgment form as was his absolute right. Thus, this attempt at service was insufficient as a matter of law under CPLR § 312-a.

On December 15, 2014, the summons with notice was hand-delivered to a receptionist at Dr. Siskin's place of business in Latham, New York. Next, on December 16, 2014, the summons with notice was hand-delivered to a receptionist at Albany Medical Center. Both of these were insufficient as a matter of law under CPLR § 308 (2) because an additional mailing was not made within 20 days in an envelope bearing the legend of "personal and confidential" and not indicating on the outside that the communication was from an attorney or concerned litigation. The court finds that plaintiff failed to properly serve on Dr. Siskin under CPLR § 308 (2). In view of the foregoing, the court does not have jurisdiction over Dr. Siskin.

II.FAILURE TO STATE A CAUSE OF ACTION

As an additional basis for dismissal, those Hospital Defendants named solely in their administrative capacities also move to dismiss for failure to state a cause of action under CPLR § 3211 (a)(7).[FN2]

These Hospital Defendants contend that the complaint does not contain any allegations that any of these particular defendants provided any care or treatment directly to plaintiff and, as such, it appears that the only basis for liability would be of a vicarious nature. It is well settled that there is no cause of action for vicarious liability against a director or officer of a hospital without proof of a negligent act (Concha v Local 1115 et al., 216 AD2d 348 [2d Dept 1995]). The court finds that plaintiff has failed to state a cause of action against the Hospital Defendants named solely in their administrative capacities (CPLR § 3211 [a][7]) and the motion to dismiss is granted with respect to said defendants.

III.CPLR § 306-b

CPLR § 306-b states that "[i]f service is not made upon a defendant within the time provided in this section [within 120 days of filing of summons with notice], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

Plaintiff has not formally moved for an extension of time to serve any of the defendants under CPLR § 306-b, but has made a reference in his reply papers to this provision (Plaintiff's Supplement to Reply, ¶ 10). Thus, the court will deem such a motion to have been made. As noted, CPLR § 306-b permits an extension of time to serve upon a showing of either good cause or interest of justice.

Good cause requires a threshold showing that the plaintiff made reasonably diligent efforts to make timely service (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]). Generally, relief under the good cause prong requires a failure to serve as a result of circumstances beyond plaintiff's control (Bumpus v NYC Transit, 66 AD3d 26 [2d Dept 2009]). Moreover, an absence of any attempt within the 120 days of the filing of the summons with notice typically disqualifies plaintiff from an extension using the good cause basis (Valentin v Zaltsman, 39 AD3d 852 [2d Dept 2007]). Here, the summons with notice was filed on December 4, 2013. The 120 day time period from that date expired on April 3, 2014. All but one of plaintiff's attempt at service on these defendants occurred after that expiration date as outlined above. The court finds that good cause has not been demonstrated here.

The interests of justice prong is the more flexible option and is subject to the discretion of the court. The factors to be considered include: plaintiff's diligence; whether the statute of limitations has expired; the meritorious nature of the action; the length of delay in service; the promptness of the plaintiff's request for the extension of time; and prejudice to the defendant

(Dujany v Gould, 63 AD3d 1496 [3d Dept 2009]).

With respect to plaintiff's attempts to serve defendants in April 2014, the court notes that all but one of the mailings occurred after the expiration of 120 days after the filing of the summons with notice. With respect to plaintiff's attempt to serve the defendants by deliver and mail, the court notes that those attempts occurred in December 2014 which was approximately one year after the action was commenced (on December 4, 2013) and more than eight months after the end of the statutorily permitted 120 days for service (on April 3, 2014). While plaintiff argues that he hired a process server on November 10, 2014 who took longer to accomplish service than anticipated, such does not excuse the lengthy delay calculated from the filing of the summons with notice on December 4, 2013.

While plaintiff attempts to use his pro se status as an excuse for failure to comply with the service requirements, this court cannot lightly cast aside the due process rights of the defendants. Stated another way, plaintiff's pro se status entitles him to no greater rights than a represented litigant (Brown v Midrox Ins. Co., 108 AD3d 921 [3d Dept 2013]). The court declines to grant plaintiff an extension of time to serve under either the good cause or the interests of justice standard in CPLR § 306-b.

In view of the foregoing, the court need not address defendants' arguments regarding statute of limitations. The court has considered the remaining arguments and finds them to be without merit.

CONCLUSION

In view of the foregoing, defendants' motions to dismiss the complaint on the grounds that the court does not have jurisdiction due to improper service (CPLR §§ 308[2]; 312-a; 3211 [a][8]), and/or failure to state a cause of action (CPLR § 3211 [a][7]) are granted. The complaint is dismissed in its entirety.

This constitutes the order of the court.

Dated:August 10, 2015 Binghamton, New York

s/ Ferris D. Lebous____________

Hon. Ferris D. Lebous

Justice, Supreme Court

The court considered the following papers with exhibits which are on file with the Broome County Clerk's Office:

1.Notice of Motion dated January 14, 2015;

2.Affirmation of Margaret J. Fowler, Esq., dated January 14, 2015;

3.Affidavit of Salim G. Contractor, M.D. sworn to January 5, 2015;

4.Affidavit of Kelly Elliott sworn to December 30, 2014;

5.Affidavit of Stacie Gogger sworn to December 31, 2014;

6.Affidavit of Diane Noble sworn to January 6, 2015;

7.Affidavit of Robyn A. Shaffer sworn to January 14, 2015;

8.Memorandum of Law dated January 14, 2015;

9.Notice of Motion dated January 14, 2015;

10.Attorney Affidavit of Thomas G. Daley, Esq. sworn to January 14, 2015;

11.Notice of Motion dated January 14, 2015;

12.Attorney Affidavit of Mackenzie C. Monaco, Esq. sworn to January 14, 2015;

13.Affidavit of Gary Siskin, M.D. sworn to January 15, 2015;

14.Memorandum of Law dated January 14, 2015;

14.Reply Affidavit of Mackenzie C. Monaco, Esq. sworn to July 16, 2015;

15.Plaintiff's Reply to Notice of Motion dated January 31, 2015;

16.Plaintiff's Reply to Notice of Motion dated February 4, 2015;

17.Plaintiff's Supplement to Reply to Notice of Motion dated July 10, 2015. Footnotes

Footnote 1:Incorrectly named in the summons as "Chief Executive Officer New York Oncology Hematology, P.C."

Footnote 2:The Hospital Defendants named solely in their administrative capacities at Albany Medical Center include: Chief Executive Officer Albany Medical College Faculty Group Practice; Chief Executive Officer and All Healthcare Staff Albany Medical Center; Chief Executive Officer Hospital Pharmacy Hospital Albany Medical Center; Edward Lee, M.D. (Chief, Division of General Surgery; failure to supervise); Joel Bartfield (Associate Dean; failure to supervise); Vincent Verdile (Dean; failure to supervise); and James Barba (President/CEO; failure to ensure quality health care (Complaint ¶ (32-35).